Absent some type of indication, however, that the government is
not discharging its Brady obligations, there is no need for the
Court to undertake the requested in camera review and, for that
reason, the Court declines to do so. See, e.g., Pennsylvania v.
Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)
("In the typical case where a defendant makes only a general
request for exculpatory material under [Brady], it is the State
that decides which information must be disclosed. Unless defense
counsel becomes aware that other exculpatory evidence was
withheld and brings it to the Court's attention,  the
prosecutor's decision on disclosure is final." (footnote
omitted)); United States v. Kiszewski, 877 F.2d 210, 215-16 (2d
Cir. 1989); United States v. Brooks, 966 F.2d 1500, 1504-05
Should the government have any question as to whether a
particular item constitutes exculpatory Brady material, it
should submit the material to the Court for in camera review.
Additionally, the movants have listed a series of items by
category (e.g., "a witnesses' rap sheet") which they claim
constitute impeachment Brady, i.e., Giglio materials. (Mem.
Law Supp. Pretrial Mots. at 13-17.) Items falling within one or
more of those categories should be furnished to the defense
consistent with the previously established disclosure schedule
(supra at 7-8), unless the government believes either that its
disclosure obligation does not pertain to that type of material
generally (in which case it should explain its position in a
letter brief, on notice), or there is a question whether a
particular item falls within an agreed upon discovery
classification (in which case the item should be submitted for in
DEMAND FOR BILL OF PARTICULARS
Movants seek further particularization with respect to the
following charges: carting industry extortion conspiracy
(Racketeering Act One, Count Three), conspiracy to murder Ernest
DeMatteo (Racketeering Act Seventeen), interstate travel in aid
of racketeering (Racketeering Act Eighteen), and conspiracy to
defraud the Internal Revenue Service (Count Sixteen).
In response, the government argues that the Court has already
addressed the particulars required to be furnished with respect
to the charged extortion conspiracy and that the present movants
have proffered no reason why that Order should be modified. As to
the other subject counts of movants' motion for a bill of
particulars, the government maintains that the indictment is
highly detailed and that the discovery provided has been
voluminous, thus obviating the need for the particulars sought.
The purpose of a bill of particulars is to permit a defendant
"to identify with sufficient particularity the nature of the
charge pending against him, thereby enabling defendant to prepare
for trial, to prevent surprise, and to interpose a plea of double
jeopardy should he be prosecuted a second time for the same
offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d
Cir. 1987). The Second Circuit has explained that "[g]enerally,
if the information sought by defendant is provided in the
indictment or in some acceptable alternate form, no bill of
particulars is required." Id. Accordingly, a bill of
particulars "should be required only where the charges of the
indictment are so general that they do not advise the defendant
of the specific acts of which he is accused." United States v.
Torres, 901 F.2d 205, 234 (2d Cir. 1990) (internal quotation
marks omitted). "It is not enough that the information would be
useful to the defendant; if the defendant has been given adequate
notice of the charges against him, the government is not required
to disclose additional details about its case." United States v.
Payden, 613 F. Supp. 800, 816 (S.D.N.Y. 1985).
Principles governing requests for bills of particulars "must be
applied with some care when the Government charges criminal
offenses under statutes as broad as RICO." United States v.
Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). And finally,
"[w]hile a bill of particulars `is not intended, as such, as a
means of learning the government's evidence and theories,' if
necessary to give the defendant enough information about the
charge to prepare his defense `it will be required even if the
effect is disclosure of evidence or of theories.'" United States
v. Barnes, 158 F.3d 662, 665 (2d Cir. 1998) (quoting 1 Charles
Alan Wright, Federal Practice and Procedure § 129 (1982)).
Attention will be directed to the bill of particulars requests
made by movants.
A. Carting Industry Extortion Conspiracy Racketeering Act One,
The government is correct in noting that the Court already
issued an Order directing the particulars to be furnished
regarding this Count. (See May 14, 1999 Order.) Under that
Order, the government was directed to disclose the identities of
carting companies who were the targets of actual or threatened
violence by members of the alleged conspiracy and the approximate
date of the extortionate conduct. By letter dated July 7, 2000,
the government provided the information required. (See July 27,
2000 Goldberg Aff. Ex. B.)
The current movants, none of whom was a defendant at the time
of the May 14, 1999 Order, maintain that they are still
inadequately apprised of the "`specific acts of which [they are]
accused,'" Torres, 901 F.2d at 234, and, accordingly, are not
in a position to prepare a defense or to prevent surprise at
trial. Upon revisiting the issue, the Court directs that the
particulars detailed below — some of which parallel those in the
original Order — be provided by the government.
It is true, of course, that no specific acts of violence or
threatened violence need be proven to establish a conspiracy to
commit such acts. Nonetheless, if the government intends to
present evidence concerning the commission of specific acts in
its effort to prove the charged conspiracy, it shall identify
each of those acts by (1) giving a general description of the
conduct involved (2) the identity of any of the named defendants
who actually participated in the conduct (3) the identity of the
victim and (4) the approximate date of such conduct. See
Barnes, 158 F.3d 662; Davidoff, 845 F.2d 1151; Spinelli v.
United States, 382 F.2d 871 (8th Cir. 1967), rev'd on other
grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969),
overruled on other grounds by Illinois v. Gates, 462 U.S. 213,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
B. Conspiracy to Murder Ernest DeMatteo (Racketeering Act
Racketeering Act Seventeen alleges that S. Avellino, along with
others, did knowingly and intentionally conspire to murder Ernest
DeMatteo "in or about and between 1992 and 1993, in violation of
New York Penal Law Sections 125.25 and 105.15." In response to
movants' complaint that the "government has not provided a
scintilla of information concerning any conduct by [S.] Avellino
. . . in furtherance of this conspiracy," (Mem. Law Supp. Defs.'
Mot. Bill of Particulars at 6), the government has indicated that
its proof will show: